The immigration system allows US citizens and permanent residents to apply for certain immediate family members. A foreign national can petition to sponsor some family members to obtain status in the United States. Certain family members are immediate relatives, meaning they are immediately eligible for permanent residence. Other family members are preference relatives, meaning they must wait for a priority date to be eligible for permanent residence. A qualified and experienced New York family immigration attorney like Jennifer Oltarsh can assist with all your family immigration needs.
A US citizen and legal permanent resident may apply for his or her spouse and children. US citizens may also apply for parents and brothers and sisters. The spouse, minor child and parents of US citizens are immediately available to obtain residence. The other family members, such as spouses and children of permanent residents go on the priority wait list, meaning that they must wait until the priority date becomes permanent to be eligible to file for a green card. In order to obtain a green card in the United States, the foreign national must have entered the country legally. Certain aliens with old petitions filed prior to April 30, 2001 may be eligible to adjust pursuant to INA 245(i).
The following relatives are eligible for permanent residence through their family members:
Permanent Residence through marriage
Marriage to a US citizen or permanent residence can lead to a green card. A US citizen may apply for his or her spouse to obtain a green card and the spouse is immediately eligible to apply for permanent residence without a wait time. These beneficiaries are immediate relatives. Immediate relatives are eligible to obtain green cards without wait-periods or numerical limits, although there are substantial times required for USCIS and/or the State Department to process the petitions. If the foreign national is in the United States, lawful status at the time of the adjustment of status application is not required, but the foreign national must have entered the United States legally. For those immediate relative spouses outside the United States, the permanent residence is obtained through Consular processing of the immigrant visa at a US Consulate or Embassy.
Although permanent residents may also apply for a green card for their spouses, these relatives are placed on a priority wait list, meaning they must wait to become current to be eligible to apply for permanent residence. If the foreign national wishes to apply for permanent residence through adjustment of status in the United States, the foreign national must have entered legally and be in valid status at the time of the adjustment of status application. For those applicants outside the United States, the foreign national spouse will apply for an immigrant visa through Consular processing.
The fiancé of a US citizen may apply for a fiancé visa which affords the foreign national a means to enter the United States. Upon entry to the United States the fiancé must marry the US citizen within ninety (90) days to be eligible for permanent residence. The visa has prohibitions on obtaining residence and if a marriage to the petitioning US citizen does not occur within the 90 day period, there are very few means of adjusting status thereafter. The visa permits minor children to accompany their parent to the United States.
Children/Step-children of US citizens
Minor children under twenty-one of US citizens are also immediately eligible for permanent residence. Similar to immediate relative spouses, as long as the child entered the United States legally, the child may adjust status. If the child entered the United States without inspection, he or she must process the immigrant visa at a US Consulate overseas.
Step-children are also able to process for permanent residents as immediate relatives provided that his or her foreign national parent marries a US citizen prior to the child’s eighteen birthday Step-children similar to birth children are immediately eligible for permanent residence up to the age of twenty-one.
Permanent Residence for parents, adult children and children of permanent residents, brothers and sisters
US citizens may also apply for their children over twenty-one, their parents and brothers and sisters. Adult children over twenty-one, married children and parents of US citizens are all eligible to obtain residence. Similarly minor children and spouses of permanent residents are eligible: all these categories of relatives, however, go on the priority wait list, meaning that they must wait until the priority date becomes permanent to be eligible to file for a green card. The family-based category and country of origin is significant because some countries are oversubscribed. That means that those on the wait list often have significant wait-times to be eligible to apply for residence. When a petition becomes current, the spouse and children if in the United States may adjust status if they have remained in lawful status; if not, they will have to return to their home country for visa processing. Certain aliens with old petitions or labor certifications filed prior to April 30, 2001 may be eligible to adjust pursuant to INA 245(i).
Certain over-subscribed countries, such as Mexico, India, China and the Philippines, often have greater wait-times than others. Annual limits on the issuance of green cards and the number of people waiting in each category result in various and somewhat unpredictable wait-times. They can be monitored through the Department of State’s monthly visa bulletin.
Certain beneficiary family members will be permitted to bring their own spouses and children with them.
Grandparents, grandchildren, cousins, aunts, uncles, parents-in-law, and other extended family members are eligible to be directly petitioned for.
If during the period of waiting, the permanent resident petitioner becomes a U.S. citizen, the spouse and children would be eligible to adjust to permanent residence even if the wife and children beneficiaries have overstayed.
When a sponsoring permanent resident becomes a U.S. citizen, the quota category moves up to make the alien spouse and children under 21 immediate relatives, and hence immediately eligible for permanent residence. Changes in personal circumstances, such as marriage, affect the priority category and may even remove the individual from the list completely. Individual circumstances such as previous crimes committed by the alien may affect rights, and the case should be professionally evaluated.
Permanent residence for foreign nationals with an illegal entry
For those foreign nationals who entered the United States without inspection, they may still be eligible based on an immediate family member’s petition but will have to travel outside the United States to obtain the visa at a US Consulate overseas. A departure from the United States can trigger a ban from returning if the individual was in the US illegally. Waivers of inadmissibility are available for processing in the United States if the foreign national has a qualifying family member which has been set by statute as a US or permanent resident spouse or parent. (See provisional waiver)
The United States federal government now recognizes same-sex couples. This means that a US citizen or permanent resident may apply for his or her spouse irrespective of the sex of the partner provided that the marriage is legal in the location it occurred. The federal law has recognizes and accords equal rights to same sex couples. Our firm has had special expertise with same sex couples.
Oltarsh & Associates, P.C. has helped countless families reunite and obtain their residence over the last sixty five years. We can assist in the most complex cases and strive to make the process as easy and manageable as possible. If you have any questions or would like to petition for a family member of be petitioned, please contact New York family immigration attorney Jennifer Oltarsh for an evaluation.